Understanding South Africa’s Domestic Violence and Harassment Act: A Comparative Analysis

South Africa has made significant strides in combating domestic violence and protecting the rights of its citizens. The Domestic Violence Act 116 of 1998 (DVA) and the Protection from Harassment Act 17 of 2011 (HA) serves as a powerful tool in addressing domestic and other forms of violence and abuse. Although both Acts share the common goal of protecting individuals’ well-being, they differ significantly in their focus and provisions. This article explores the key aspects of the Domestic Violence Act and compares it to the Harassment Act and highlights the processes involved in obtaining protection orders.

The Domestic Violence Act recognises domestic violence as a violation of human rights and establishes measures to prevent and address such violence. The Act defines domestic violence broadly and covers various forms of abuse within intimate relationships, including physical, sexual, emotional, and economic abuse. It recognises that abuse is not limited to physical violence and includes controlling behaviours that undermine an individual’s autonomy and well-being.

Key provisions of the Domestic Violence Act include:

• Protection Order: The Domestic Violence Act enables survivors to obtain protection orders against their abusers.
• Reporting and Arrest: The Act mandates the police to assist survivors and make arrests if a warrant of arrest has been issued.
• Emergency Protection: The Act allows for emergency protection orders to be issued outside of normal court hours if the situation necessitates it.
• Counselling services: It ensures that counselling services are made available to survivors.

The Protection from Harassment Act addresses various forms of harassment including stalking, intimidation, and persistent unwanted communication whereas the Domestic Violence Act specifically focuses on domestic violence in domestic or intimate relationships. The Harassment Act applies to a broader range of situations where individuals experience harassment or fear for their safety.

The process of obtaining protection orders to ensure the safety and well-being of survivors under both these Acts involves several steps.

• The Application: The survivor needs to complete an application form which can be obtained from the Magistrate’s Court. The form should include details of the abuse, accompanied by supporting evidence. A supporting affidavit usually accommodates the application, and if financial assistance or maintenance is sought from the respondent, the complainant must set out the details of the assistance in detail.
• Interim Protection Orders: If the application is urgent, both Acts allow for the granting of interim protection orders. The interim order provides for immediate protection until the court can make a final determination.
• Service on the Respondent: Once an interim order is issued, a law enforcement officer will deliver the order to the respondent, with the service being possible at any time, day or night.
• Court Hearing: Both Acts require that a return date be given. The Respondent has the opportunity to present their side of the story and contest the allegations.

It is important to note that if an act falls under both the Domestic Violence Act and the Harassment Act, the complainant has the discretion to decide under which Act they wish to pursue with their application for a protection order. The court will consider the relevant provisions of the chosen Act during the proceedings.

In conclusion, the Domestic Violence Act and the Protection from Harassment Act each have crucial roles in combating abuse and harassment in South Africa. These acts offer legal remedies, support services, and preventive measures to effectively address domestic violence and ensure the well-being of individuals. Both Acts include a broad range of acts that can be classified as abuse and violence, including emotional, verbal, psychological, spiritual and economic abuse. It also protects an individual against damage to property, degrading, offensive and humiliating behaviour.  However, the ongoing battle against domestic violence requires collective efforts from all stakeholders to create a society free from fear.

WRITTEN BY HESRI ELOFF

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